ALF DEVELOPERS PRIVATE LIMITED Vs. VEENA TRIVEDI

JUDGEMENT

(1.) This order will dispose of three applications namely, I.A. Nos. 7369/95, 6295/96 and 4732/95 moved by the plaintiffs M/s. ALF Developers P. Ltd. and Ashok Narang in Suit No. 1410/95. While two applications viz. 4732/95 and 7369/95 are under Order 39 Rules 1 & 2, I.A. 6295/96 is under Order 39 Rule 2 A CPC.

(2.) This order will also dispose of two applications being I.A. Nos. 12751/95 and 196/96 in Suit No. 2953/95. The former application has been moved by Smt.Veena Trivedi, plaintiff in that suit, under Order 39 Rule 1 & 2 of the Civil Procedure Code and the latter application, has been moved by the applicant, Ashok Narang, under Order 1 Rule 10, CPC. For the purpose of narration of facts, reference to the plaintiffs and defendant here-in-after will be relatable to plaintiffs and defendant in Suit No. 1410/95.

(3.) The defendant acquired plot No. B-25, Gulmohar Park, New Delhi under a perpetual sub lease dated 27th November, 1969 from Journalists Cooperative House Building Society. On 13th April, 1992 the plaintiff No. 1 and defendant entered into a "collaboration agreement" (for short the "agreement" or the "collaboration agreement") by virtue of which the former was to construct first and second floors at its own cost in accordance with the sanctioned plan. Further more under the "agreement" defendant was to receive a sum of Rs. 3 lakhs within 6 months of the execution of the "agreement", failing which the defendant was to receive interest @ 12% per annum. At this stage it will be pertinent to mention that by a separate contract dated 31st March, 1992 between the defendant and a company called Dass Trading Holding Pvt. Ltd., the latter was to construct the entire basement floor and ground floor. The plaintiff No. 1 was to use the ground floor terrace, which was subjectmatter of the "agreement" between the defendant and Dass Trading and Holding Pvt. Ltd., for raising the first and second floors. It is not disputed on both the sides that the plaintiff No. 1 made payment of only Rs. 21,000.00 to the defendant as against the payment of Rs. 3.21 lakhs as stipulated in the "agreement". It is also not disputed that the plaintiff No. 1 constructed the first floor and the second floor. However, the stand of the defendant is that the plaintiff did not construct the second floor in accordance with the stipulations made in the "agreement". Clause 5 of the "agreement" recites that the owner has agreed to transfer the rights and possession of the entire first floor to the builder or his nominee with the undivided interest in the plot of land in equal ratio with other occupants. The said clause also provides that the owner has agreed to part with first floor to the builder or his nominee and on receiving the balance payment with interest and also taking over possession of the second floor of the building in approximately equal ratio of first floor covered area with entire terrace and first floor terrace rights excluding partly provided space for servant room/lavatory for the ground and first floors occupants. As per the "agreement" the defendant had agreed to convert the land from lease hold to free hold but the cost of conversion was to be paid by the occupants of the ground and first floors. Clause 10 of the "agreement" postulated that the plaintiff No. 1 could start selling or booking the flats. On December 15, 1993 the plaintiff No. 1 entered into an "agreement" to sell the first floor of the property in question to plaintiff No. 2. Subsequently on July 8, 1994, the plaintiff No. 2 entered into an "agreement" with plaintiff No. 1 whereby plaintiff No. 1 was to make additions, alterations & renovations in the first floor of the property. The defendant by means of a legal notice dated March 21, 1995 called upon the plaintiff No. 1 to handover possession of first floor to her on the ground that the plaintiff No. 1 failed to construct the second floor in equal ratio to the first floor covered area and was incapable of fulfilling the condition because of Building Bye Laws of the MCD. The notice also asked the plaintiff No. 1 not to hand over the first floor to any other person and booking of the same, if any, be cancelled. On 2nd June, 1995 the defendant installed an iron gate in the stair-case leading to the first floor at the points `A' to `B' in the site plan accompanying the plaint. Due to the ingress to and egress from the first floor being obstructed by the defendant, the plaintiffs on June 7, 1995 filed the suit being Suit No. 1410/95 for restraining the defendant from interfering and/or causing obstruction in the peaceful carrying out of the repairs, finishing and interior decoration in the first floor and to direct the defendant to remove the iron gate.